FEDERAL COURT OF AUSTRALIA
Thompson v Lane [2024] FCA 1234
File number(s): QUD 447 of 2023 Judgment of: COLLIER J Date of judgment: 24 October 2024 Catchwords: BANKRUPTCY – applicant discharged from bankruptcy – application for trustee to cease acting – administration of bankrupt estate ongoing – further relief seeking full and frank disclosure – duties of trustee – duty to inform – alleged improper payment out of administration account Legislation: Bankruptcy Act 1966 (Cth) ss 19, 149, 152, 178, sch 2, div 45-1, 42-60, 65-25, 70-56
Insolvency Practice Rules (Bankruptcy) 2016 (Cth) ss 42-60, 70-17(5)
Cases cited: Australian Broadcasting Corporation v O'Neill [2006] HCA 46; 80 ALJR 1672; 229 ALR 457
D’orta-Ekenaike v Victoria Legal Aid & Anor (2005) 214 ALR 92
Daemar v Industrial Commission of New South Wales and Anor (No 2)(1990) 22 NSWLR 178
Hudson Jnr v Whalan and Anor [1998] FCA 1064
McGoldrick v Official Trustee in Bankruptcy (1993) 47 FCR 547
Oshlack v Richmond River Council [1998] HCA 11; (1997) 152 ALR 83
Pegler v Dale [1975] 1 NSWLR 265
Re Balhorn; Ex parte Balhorn and Official Trustee (1981) 39 ALR 223
Storry v Weir (No 2)[2022] FCA 1360
Thompson v Lane (Trustee) (No 3) [2022] FCA 128
Thompson v Lane (Trustee) [2023] FCAFC 32
Trkulja v Morton (No 2) [2005] FCA 1044
CCH Australian Bankruptcy Law and Practice
Division: General Division Registry: Queensland National Practice Area: Commercial and Corporations Sub-area: General and Personal Insolvency Number of paragraphs: 69 Date of last submission/s: 25 March 2024 Date of hearing: 6 February 2024 Counsel for the Applicant: the applicant appeared in person Solicitor for the Respondent: Shand Taylor Lawyers ORDERS
QUD 447 of 2023 BETWEEN: EMMA NARELLE CATHRYN THOMPSON
Applicant
AND: MORGAN LANE
Respondent
ORDER MADE BY:
COLLIER J
DATE OF ORDER:
24 OCTOBER 2024
THE COURT ORDERS THAT:
1.The interim order sought by the applicant in the originating application filed on 17 October 2023 be refused.
2.The interim application filed on 13 December 2023 be dismissed.
3.The further relief sought by the applicant pursuant to submissions filed on 6 February 2024 be refused.
4.The applicant pay the costs of the respondent of and incidental to these interlocutory proceedings on a party-party basis.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
COLLIER J:
Before the Court are two interim applications filed by Ms Emma Thompson in which she sought orders for removal of the trustee of her bankrupt estate, Mr Morgan Lane of Worrells insolvency firm (the trustee). She also sought payment of funds allegedly held by the trustee.
The first application was filed by Ms Thompson as part an Originating Application on 17 October 2023 and was accompanied by an affidavit of Ms Thompson dated 16 October 2023. The second interim application was filed by Ms Thompson on 13 December 2023 and was accompanied by an affidavit of Ms Thompson dated 13 December 2023.
The…
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- Thompson v Lane [2024] FCA 1234
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- [2024] FCA 1234
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CaseChat Overview and Summary
The court considered whether Ms Thompson was entitled to the interim relief she sought, which included the removal of the trustee and the payment of various sums by the trustee. It also examined whether the trustee had complied with the duties imposed by the Bankruptcy Act and the Insolvency Practice Rules, particularly concerning the necessity and reasonableness of costs incurred. The court emphasised that the proceedings were not a means to relitigate previously decided matters and that costs generally follow the event.
In its reasoning, the court found that the trustee had acted within the bounds of the law in administering the estate, and that the payments made were for purposes related to the administration of the estate and in accordance with the Act. The court also noted that the sections of the Act and Rules cited by Ms Thompson did not support the relief she sought. Consequently, the court refused the interim relief sought by Ms Thompson and dismissed the further relief application. The court ordered that Ms Thompson pay the respondent's costs of and incidental to these interlocutory proceedings on a party-party basis.
Orders
Orders of the court
1. The interim order sought by the applicant in the originating application filed on 17 October 2023 be refused.
2. The interim application filed on 13 December 2023 be dismissed.
3. The further relief sought by the applicant pursuant to submissions filed on 6 February 2024 be refused.
4. The applicant pay the costs of the respondent of and incidental to these interlocutory proceedings on a party-party basis.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Ms Thompson further referred to sch 2, div 65-25 of the Bankruptcy Act which reads as follows: 65 - 25 Paying money out of administration accountMoney only to be paid out of administration account in accordance with this Act etc.(1)The trustee of a regulated debtor's estate must not pay any money out of the administration account for the estate otherwise than:(a) for purposes related to the administration of the estate; or(b) in accordance with this Act; or(c) in accordance with a direction of the Court.… Ms Thompson also referred in her originating application to “sch 2 div 42-60 of the Bankruptcy Act”. This section does not exist. I accept the submission of the respondent that Ms Thompson intended to refer to s 42-60 of the Insolvency Practice Rules. That section reads as follows: 42-60 Costs incurred to be necessary and reasonableIn conducting an administration, a registered trustee must:(a) incur only those costs that are necessary and reasonable; and(b) before deciding whether it is appropriate to incur a cost, compare the amount of the cost likely to be incurred with the value and complexity of the administration. Ms Thompson further sought in para 2(f) of her further relief that, in the alternative, the trustee provide full and frank details and all documents to evidence that all costs, charges and expenses that the trustee sought to be paid for the administration of the bankrupt estate were necessary, reasonable in amount, and reasonably incurred. Relevantly in his submissions the trustee stated:16.To the extent the applicant purports to seek orders under section 65–25 of Schedule 2 of the Act, the alternative orders sought are not contemplated by that section which is concerned with the payment of money. To the extent the respondent has made payments as part of the administration of the applicant’s bankrupt estate, those payments have been made for purposes related to the administration of the estate and in accordance with the Act.17. To the extent the applicant has referred to section 42–60 of Schedule 2 of the Act, no such section exists. The respondent believes the applicant is intending to refer to section 42–60 of the Insolvency Practice Rules (Bankruptcy) 2016 which relate to a Trustees obligation to incur costs that are necessary and reasonable. This section does not contemplate the granting of the orders sought by the applicant and there is no evidence the respondent has not complied with that section in all respects in any event. Ms Thompson’s complaint relating to “charges by the trustee” against the bankrupt estate for costs is expanded at paras 4(j) and (k) of her Concise Statement filed 5 December 2023:j) acted in breach of s.65-25 of the Bankruptcy Act 1966, including paying $237,103.81 for legal costs from the Applicant’s bankrupt estate, being;$151,821.04 to Shand Taylor Lawyers; noting that the respondent has not responded to the Applicant’s request for identification of what account the amount of $151,821.04 was paid, and the legal basis the $85,282.77 was paid.and$85,282.77 to Arila Lodge CTS 14237; noting that the amount of $85,282.77 does not appear on the Applicant’s Lot 3 Statement dated 18 November 2023, and the respondent has not responded to the Applicant’s request for identification of to whom the $85,282.77 was paid.despite there being no legal basis for such payments, including;i. no exhibited evidence of a valid written Costs Agreement between Morgan Lane and Shand Taylor Lawyers; andii. no valid costs Agreement between Grace Lawyers and “BCAL”; andiii. no exhibited evidence of “BCAL” making any payment for legal costs to Grace Lawyers; andiv. no exhibited evidence of compliance by “BCAL” with the requisite conditions of the Body Corporate and Community Management Act 1997 and Body Corporate and Community Management (Standard Module) Regulations 2008; andv. no exhibited evidence of compliance by Shand Taylor Lawyers or Grace Lawyers with legislation, including Legal Practice Act and Australian Solicitor’s Code; andvi. that in addition to this proceeding, the proceedings QUD286 of 2023, QUD419 of 2023 and QUD420 of 2023 pertaining to legal costs all remain afoot)k) incurred costs, charges and expenses that are not necessary, reasonable in amount, nor reasonably incurred, and are absent valid legal basis (s.42-60 of Schedule 2 of the Bankruptcy Act 1966); and